In re: P Children

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-SEP-2023
08:02 AM
Dkt. 62 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE INTEREST OF THE P CHILDREN

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-S NO. 19-1-0083 AND FC-S NO. 19-1-0084)

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Respondent-Appellant Mother (Mother), appeals from
orders entered on September 26, 2022, revoking foster custody and
granting permanent custody of FP and AP (collectively Children)
to Petitioner-Appellee Department of Human Services (DHS) in the
Family Court of the Second Circuit (Family Court) in FC-S Nos.
19-1-0083 and FC-S 19-1-0084, respectively (TPR Orders).1 2
Mother raises two points of error asserting the Family
Court erred by: (1) appointing a guardian ad litem who had
previously represented Mother in a prior Child Protective
Services (CPS) matter, and (2) failing to appoint new counsel for
Mother after granting her court-appointed counsel's post-trial
motion to withdraw.

1
The Honorable Michelle Drewyer presided.
2
The Children's father (Father) did not appeal the TPR Orders.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On June 13, 2023, this court issued an order
referencing holdings by the Hawai#i Supreme Court in In re L.I.,
149 Hawai#i 118, 482 P.3d 1079 (2021), and ordered the parties to
submit supplemental briefing as to "whether appointment of
counsel for Mother was timely."
Based on the record and pursuant to requirements under
prevailing case law, we vacate orders affecting custody of the
Children from June 21, 2019, when the Family Court first ordered
temporary foster custody without appointing counsel for Mother in
this case. We remand to the Family Court for further
proceedings.
I. Background
FP was born in May 2017 and AP was born in April 2019.
On June 6, 2019, DHS filed a Petition for Family
Supervision (Petition for Supervision) due to Mother's drug abuse
impairing her ability to safely care for the Children. That day,
DHS also filed a safe family home report, identifying safety
factors as "Mother's history of substance abuse, and family is
transient."
On June 8, 2019, DHS personally served Mother with the
Petition for Supervision.
On June 21, 2019, the Family Court held a return
hearing on the Petition for Supervision wherein DHS moved for,
and the Family Court granted, DHS's oral motion for temporary
foster custody of the Children upon location. Mother did not
appear at the hearing and the Family Court stayed default against
her.
On July 2, 2019, Mother appeared and the Family Court
ordered her to return on July 16, 2019 with counsel.3

3
The hearing minutes do not reflect what, if any, advisement Mother
received regarding the availability of court-appointed counsel.
Additionally, the record does not contain a transcript of the July 2, 2019
hearing. Thus, it is unclear what, if any, advisement Mother received
regarding the availability of court-appointed counsel.

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On July 16, 2019, Mother failed to appear, thus the
Family Court entered an order establishing jurisdiction and
granting DHS foster custody of the Children.
On November 12, 2019, Mother applied for and received
court-appointed counsel. This occurred 159 days (over 5 months)
after DHS filed its Petition for Supervision, and 144 days (over
4 months) after the Family Court granted DHS temporary foster
custody of the Children.
The underlying cases proceeded, and on September 26,
2022, the Family Court entered the TPR Orders.
II. Discussion
"[T]he appellate court, at its option, may notice a
plain error not presented." HRAP Rule 28(b)(4).4 Further, "[w]e
answer questions of constitutional law by exercising our own
independent constitutional judgment based on the facts of the
case. Thus, we review questions of constitutional law under the
right/wrong standard." State v. Ui, 142 Hawai#i 287, 292, 418
P.3d 628, 633 (2018) (citation omitted).
The Hawai#i Supreme Court, in In re T.M., held that:
We recognize that parents have a substantive liberty
interest in the care, custody, and control of their children
that is protected by the due process clause of article I,
section 5 of the Hawai#i Constitution. Therefore, we
additionally hold that parents have a constitutional right
to counsel under article I, section 5 in parental
termination proceedings and that from and after the filing
date of this opinion, courts must appoint counsel for
indigent parents once DHS files a petition to assert foster
custody over a child.

131 Hawai#i 419, 421, 319 P.3d 338, 340 (2014) (emphasis added)
(citation and footnote omitted).
Subsequently, in In re L.I., the Hawai#i Supreme Court
further clarified:

4
HRAP Rule 28(b)(4) also states: "If an appellate court, when acting
on a case on appeal, contemplates basing the disposition of the case wholly or
in part upon an issue of plain error not raised by the parties through
briefing, it shall not affirm, reverse, or vacate the case without allowing
the parties the opportunity to brief the potential plain-error issue prior to
disposition." In this appeal, we issued an order for supplemental briefing on
the plain error issue we address herein.

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We now take this opportunity to clarify that In re T.M.
mandated that family courts appoint counsel for indigent
parents when DHS files a petition asserting custody over a
child. We now further hold that family courts must appoint
counsel for indigent parents when DHS files a petition for
family supervision because, at that point, parental rights
are substantially affected as foster custody can be ordered
by the court at a subsequent hearing.

. . . .
The failure to timely appoint counsel is structural error
which . . . requires vacatur without the necessity of
proving harmful error. The family court's failure to appoint
Mother counsel when DHS filed its petition for family
supervision was structural error and cannot be deemed
harmless.

149 Hawai#i 118, 122-23, 482 P.3d 1079, 1083-84 (2021) (emphasis
added) (citations and footnotes omitted).5 Thus, the supreme
court in In re L.I. held that this court had erred by failing to
vacate the family court's orders granting foster custody to DHS
and terminating parental rights in that case. Id. at 123, 482
P.3d at 1084.
In this appeal, we notice plain error based on the
prevailing case law and conclude that counsel for Mother was not
appointed in a timely manner. Initially, we note that In re T.M.
was issued in January 2014, prior to the initiation of this case
in June 2019. Thus, the rulings in In re T.M. applied at the
beginning of the proceedings in this case. However, In re L.I.
was issued in March 2021, and thus the ruling therein extending

5
In Interest of JH, 152 Hawai#i 373, 526 P.3d 350 (2023), the Hawai#i
Supreme Court subsequently distinguished In re L.I. and held:

A family court must timely appoint counsel in parental
rights cases. Otherwise, structural error will nullify an
outcome adverse to a parent. But the appointment,
discharge, and reappointment of counsel is different.
We hold that if the family court appoints counsel at the
onset of a parental rights case, and later there's a break
in representation due to a parent's voluntary absence, then
there is no structural error. As long as a fundamentally
fair procedure ensues and due process is satisfied, the
family court's decision will stand.
Id. at 376, 526 P.3d at 353 (emphasis added). In the instant case, we address
the failure to timely appoint counsel for Mother at the initial stage, when
DHS first asserted custody over the Children, and thus Interest of JH does not
apply.

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In re T.M. to the filing of a "petition for family supervision"
was issued after the Petition for Supervision was filed in this
case. We thus hold that, under In re T.M., the Family Court in
this case failed to appoint counsel upon DHS's oral motion for
temporary custody made at the June 21, 2019 hearing.6
In reaching this holding, we address DHS's position
that a family court is required to confirm that a parent is
indigent prior to appointing counsel. Based on the applicable
authority, particularly In re L.I., DHS's position is incorrect.
In re L.I., is instructive because, although it was issued in
2021, it dealt with a case initiated in the family court in June
2014, and is relevant to whether a court must decide indigency
before counsel is appointed.
In In re L.I., this court, and subsequently the Hawai#i
Supreme Court, addressed a factually similar scenario to the
instant case, wherein a family court appointed counsel for a
mother three months after her eldest child was placed in foster
care. 149 Hawai#i at 120, 482 P.3d at 1081. Several years
later, the family court terminated mother's parental rights. Id.
On appeal, mother argued that the family court's three-month
delay in appointing her counsel violated In re T.M. Id.
This court acknowledged the family court's error, but
declined to overturn the termination of mother's parental rights
noting, among other things, that mother's early departure from
court the day her child was placed into foster custody, and her
inconsistent responses to instructions to complete the paperwork
necessary to establish indigency, contributed to the delay in her

6
Although DHS's motion seeking to assert custody of the Children was
made verbally at the hearing, and not in a written filing, we conclude that In
re T.M. would apply at that time. The analysis in In re T.M. is concerned
with when a parent's liberty interest in the care, custody and control of
their child is at stake. 131 Hawai#i at 421, 433-36, 319 P.3d at 340, 352-55.
As demonstrated in this case, a verbal motion for foster custody can result in
an immediate order granting the motion.

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appointment of counsel. In re L.I., No. CAAP-XX-XXXXXXX, 2020 WL
1679419, at *3 (Haw. App. April 6, 2020) (SDO), vacated, 149
Hawai#i 118, 482 P.3d 1079 (2021).
As noted above, the Hawai#i Supreme Court vacated this
court's decision. In re L.I., 149 Hawai#i at 123, 482 P.3d at
1084. In doing so, the supreme court clarified that "In re T.M.
mandated that family courts appoint counsel for indigent parents
when DHS files a petition asserting custody over a child[,]" and
the court further held that "family courts must appoint counsel
for indigent parents when DHS files a petition for family
supervision[.]" Id. at 122, 482 P.3d at 1083 (emphasis added).
The Hawai#i Supreme Court re-emphasized its rationale
underlying In re T.M., namely, that parental rights are
substantially affected upon the filing of a petition asserting
custody over a child, and that mandating appointment of counsel
once DHS initiates action for custody removes the vagaries of a
case-by-case approach. In re L.I., 149 Hawai#i at 122, 482 P.3d
at 1083.
In In re L.I., the supreme court also noted it had
explained in In re T.M. that "indigent criminal defendants have a
right to an attorney whenever they are threatened by
imprisonment, even if imprisonment is not subsequently
imposed[,]" and that "attempting to determine in advance of the
proceedings whether legal representation would ultimately be
required is an exercise in futility. The safeguard for parental
rights thus rests on the appointment of counsel at the beginning
of proceedings[.]" Id. at 122 n.5, 482 P.3d at 1083 n.5
(emphasis added) (quoting In re T.M., 131 Hawai#i at 435 n.23,
319 P.3d at 354 n.23).
The Hawai#i Supreme Court did not specifically address
the question of when a family court is required to determine
indigency for purposes of appointing counsel in a termination of
parental rights proceeding, which the court recognized as a right
under article I, section 5 of the Hawai#i Constitution. However,
In re L.I. constructively forecloses DHS's argument in this case,

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that a family court must determine indigency before appointing
counsel. First, In re L.I. holds that counsel must be appointed
when DHS files a petition for family supervision or for custody,
and also noted that to safeguard parental rights the appointment
should be at the beginning of the proceedings. Id. at 122, 122
n.5, 482 P.3d at 1083, 1083 n.5. Further, in In re L.I., the
supreme court rejected this court's rationale for not vacating
the family court orders, which was that the mother's "early
departure from the courtroom on January 13, 2015, her failure to
provide DHS a specific street address for her new residence, and
her inconsistent responses to voicemail messages and instructions
for completing the paperwork necessary to establish her indigency
all contributed greatly to the delay." Id. at 121, 482 P.3d at
1082 (emphasis added) (footnote omitted). In short, the supreme
court focused on DHS's filing of a petition as the trigger for
the family court's obligation to appoint counsel; not the family
court's determination of indigency.7
Applying In re T.M. and In re L.I. here, we hold that:
(1) the Family Court was not required to determine indigency
prior to appointing counsel for Mother; and (2) the Family
Court's failure to appoint counsel for Mother for 144 days,
between June 21, 2019 (when temporary foster custody was
requested and granted) to November 12, 2019 (when counsel was
appointed) was structural error which requires vacatur of orders
affecting custody of the Children from June 21, 2019. Id. at
123, 482 P.3d at 1084 ("Pursuant to the holding in In re T.M.,
the failure to appoint counsel is a structural error that
requires vacatur of orders made after DHS's filing for foster
custody"). Consistent with In re L.I., we must remand this case
to the Family Court for further proceedings to consider the best
interest of the Children. Id.

7
In re L.I. is silent about the possibility that a family court
consider indigency of a parent after counsel is initially appointed to protect
the parent's rights.

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We decline to address the parties' remaining arguments.
III. Conclusion
For the foregoing reasons, we vacate the orders
revoking foster custody and granting permanent custody of FP and
AP to DHS, entered on September 26, 2022, in the Family Court of
the Second Circuit in FC-S Nos. 19-1-0083 and FC-S 19-1-0084,
respectively. We also vacate orders affecting custody of the
Children issued from June 21, 2019. This case is remanded to the
Family Court for further proceedings consistent with this
Memorandum Opinion and considering the best interests of the
Children.
DATED: Honolulu, Hawai#i, September 19, 2023.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Matthew Mannisto,
for Mother-Appellant /s/ Katherine G. Leonard
Associate Judge
Terence Y. Herndon,
Julio C. Herrera, /s/ Keith K. Hiraoka
Patrick A. Pascual, Associate Judge
Abigail S. Dunn Apana,
Deputy Attorneys General,
for Petitioner-Appellee

Nicole Forelli,
Guardian Ad Litem

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